Sheriff Act 2009

The Act defines a number of key concepts that underpin its operation. The sheriff is the person employed under section 6 for the purposes of court and enforcement legislation and to assist in the administration of justice. The deputy sheriff is employed under section 10 and may exercise enforcement functions subject to the sheriff’s direction (s 10(2)). Sheriff’s officers are employed under section 11 to assist the sheriff and exercise delegated enforcement functions (s 11). A deputised person is a Department of Justice employee appointed by the sheriff under section 8, typically at Grade 5 or above, whom the sheriff considers has necessary competence. An appropriately trained justice employee is any Department of Justice employee (under the Public Administration Act 2004) whom the sheriff considers has the necessary competence, training, or experience to perform a delegated enforcement function (s 4). Central to the Act is the concept of a warrant, which means a criminal warrant or a civil warrant (s 3). A civil warrant includes a warrant of seizure and sale, warrant of possession, warrant of delivery, warrant to seize property under section 111 of the Magistrates’ Court Act 1989, or any other warrant directed to the sheriff relating to enforcement of a judgment or order in a civil proceeding. A criminal warrant includes warrants to arrest issued by the Supreme Court, County Court, or under the Magistrates’ Court Act 1989, warrants to imprison, warrants to seize property under section 73 of that Act, enforcement warrants under the Fines Reform Act 2014, and any other warrant relating to a criminal proceeding issued by a court and directed to the sheriff. A money warrant is defined broadly to cover civil warrants (other than warrants of possession), enforcement warrants, warrants to imprison under section 68(b) of the Magistrates’ Court Act 1989, warrants to arrest under section 69 of the Sentencing Act 1991, and warrants to seize property under section 73 of the Magistrates’ Court Act 1989 (s 3). The payable amount is the amount specified in a money warrant as required to be paid. Recoverable property means property specified in a warrant that may lawfully be seized under it (s 3). A seven day demand refers to a demand under section 69C of the Sentencing Act 1991 or a seven-day notice issued under the Fines Reform Act 2014 (s 3). A notice of final demand has the meaning given in the Fines Reform Act 2014 (s 3). The Act distinguishes between civil proceedings and criminal proceedings (s 3). Premises includes land, structures, buildings, and any part thereof (s 3). Required information is the name, date of birth, and last known address of a person held by a specified agency (which includes public sector bodies, councils, and prescribed organisations) in relation to a person against whom a warrant is to be executed (ss 52-53). The Act also introduces concepts for multiple warrant execution: combined proceeds are proceeds from sale of property or money received under warrants executed at the same time (s 42). Warrant costs are the costs and expenses of execution recoverable under section 32.

The Sheriff Act 2009 directly affects a wide range of persons and entities. Most obviously, it affects the sheriff, the deputy sheriff, and sheriff’s officers, who are the primary enforcement officers under the Act. Deputised persons (senior Department of Justice employees appointed by the sheriff) and appropriately trained justice employees (other Department of Justice employees to whom functions are delegated) are also directly affected, as they may exercise enforcement powers under delegation (ss 8, 9). Persons named or described in warrants are the principal targets of enforcement actions; they may be arrested, have their property seized or sold, be directed to do things, and be required to pay amounts under money warrants. Third parties who are present at or reside at premises entered by the sheriff may be asked to pay the payable amount or part of it, but only with the consent of the person named in the warrant (s 27). Such third parties receive a notice and have the right to have the amount refunded if the court reinstates the warrant (s 28). Owners and occupiers of premises are affected by the sheriff’s powers of entry, search, and seizure (ss 17-22A). They may be asked for consent to entry and may have force used against them if consent is unreasonably withheld (s 22). The Act also affects specified agencies , public sector bodies, councils, and prescribed organisations , which must comply with requests from the sheriff for required information about persons against whom warrants are to be executed, within 14 days, unless they are a law enforcement agency or exceptional circumstances are certified (ss 53-54). Credit reporting bodies are authorised to disclose relevant information (identification information included in credit information) to the sheriff for the purpose of executing a warrant (s 55A). Courts are affected in that they issue warrants that the sheriff must execute, and they have a role in reinstating money warrants upon application by the person named (s 28). Police officers are involved through the sheriff’s power to exercise enforcement functions at police road checks (s 30). Drivers and passengers of motor vehicles stopped at road checks may be directed to keep stationary, produce licences, or comply with other directions (s 30(2)-(3)). Persons who resist, assault, or impersonate enforcement officers are subject to criminal penalties (ss 47-51). Buyers of property sold by the sheriff acquire good title if they purchase in good faith without notice of defect (s 25). The Act also binds the Crown (s 5), meaning government entities are subject to its provisions. Finally, parties to civil proceedings in other states, the Commonwealth, or Convention countries who need judicial documents served in Victoria may request the sheriff to serve them (s 55B).

The Act imposes numerous duties on the sheriff and confers corresponding rights on persons affected. The sheriff’s primary duty is to execute and return every warrant or other process directed to him or her as soon as practicable after receiving it (s 13(1)). However, section 13(1A) excludes the return of a warrant under the Magistrates’ Court Act 1989 from this requirement. When executing a warrant, the sheriff may only perform functions and powers that are reasonably necessary (s 13(2)). Before executing a money warrant, the sheriff must inform the person that they may make a payment in accordance with a notice of final demand if one has been served (s 26(2)). Upon seizing property or receiving money, the sheriff must give a receipt without delay and take all necessary steps to obtain an effectual discharge of the debt (s 33(2)-(3)). If a third party pays part or all of the payable amount in the absence of the person named, the sheriff must not apply that payment to the debt until 28 days after receipt (s 33(3A)), and must serve a notice on the person named specifying the third party’s name, date, amount, and the right to apply for reinstatement within 28 days (s 27(9)). The sheriff must also apply combined proceeds from multiple warrants in a strict order of priority: first to warrants to imprison, then to warrants to arrest, then to other warrants in order of receipt (ss 43-46). The sheriff must not recover costs and expenses from a third party payment until 28 days after payment (s 32(4)). If unsold property remains in the sheriff’s possession (e.g., after a failed sale or no buyer collection), the sheriff must give written notice to the owner (or the person from whom property was seized) that property is available for retrieval, and may dispose of it only after 3 months if not retrieved (s 33A). The sheriff has a duty to give written notification to persons to whom enforcement functions are delegated (s 9(3)). Persons subject to warrant execution have the right to be informed of the grounds for the sheriff’s belief about their identity (s 29(3)), and may request the sheriff to state name, position, and place of business (s 29(5)). They have the right to apply to the court for reinstatement of a money warrant within 28 days after a third party pays part or all of the amount (s 28). A person who is not the person named in a warrant but who is asked to state name and address must comply, but only if informed that refusal is an offence (s 29(9)). A person may waive the period of a seven day demand in writing, allowing earlier execution of warrants (s 36(2)). Persons who buy property from the sheriff in good faith acquire good title, and the sheriff is not liable for sale unless the sheriff had notice or could have ascertained the property was not the debtor’s (s 25). Specified agencies have a duty to comply with a request for required information within 14 days unless exempt (s 54(1)). Credit reporting bodies are authorised to disclose relevant information but are not compelled (s 55A). The Supreme Court may request the sheriff to serve foreign judicial documents under the Hague Convention, and the sheriff must comply (s 55B(1)); the sheriff may serve interstate or Commonwealth judicial documents if requested by a party (s 55B(2)).

The Act creates several criminal offences with prescribed penalties. Under section 47, a person must not resist the sheriff, deputy sheriff, sheriff’s officer, or an appropriately trained justice employee in the execution of a warrant or other process, or in the exercise of a power under specified sections of the Fines Reform Act 2014 (ss 127-131, 140, 141, 145). The penalty is 6 months imprisonment. Section 48 prohibits assaulting any of these persons while they are performing enforcement functions, also carrying 6 months imprisonment. Section 49 makes it an offence to escape from the lawful custody of these officers, likewise 6 months imprisonment. Section 50 makes it an offence to rescue or attempt to rescue any property lawfully seized by these officers, again 6 months imprisonment. Section 51 prohibits impersonating the sheriff, deputy sheriff, sheriff’s officer, or appropriately trained justice employee, also 6 months imprisonment. Notably, sections 48(2) and 50(2) state that they do not affect the powers of the Supreme Court in relation to contempt, meaning additional contempt proceedings may be available. In addition to these imprisonment penalties, the Act imposes monetary penalties in penalty units for certain failures. Under section 29(4), a person who fails without reasonable excuse to state name and address when requested, or gives false name or address, is liable to 5 penalty units. Similarly, a sheriff who fails to state name and position when requested is liable to 5 penalty units (s 29(6)). A person who fails without reasonable excuse to produce evidence of identity when requested is liable to 5 penalty units (s 29(8)). Failure to comply with a direction at a police road check attracts 5 penalty units (s 30(3)). Failure to comply with a direction under section 31 attracts 5 penalty units (s 31(3)). The penalty units are as defined under the relevant legislation at the time. The Act also provides for enforcement through the sheriff’s own powers: the sheriff may use reasonable force and assistance to enter premises (s 21), arrest persons under criminal warrants (s 15), temporarily restrain persons hindering execution (s 16), seize property (s 23), sell property (s 24), and demand payment (s 27). The sheriff may also direct a person to do something (s 31). Failure to comply with a request for required information by a specified agency does not carry a penalty in the Act, but the sheriff may have other remedies. The sheriff is liable for damage incurred if they fail to give a receipt or obtain discharge of the debt (s 33(4)). The Act provides that the sheriff may recover reasonable costs and expenses of execution, and those costs may be recovered before proceeds are applied to the payable amount (s 32(1)-(3)). However, as noted, this is delayed for third party payments (s 32(4)). The reinstatement mechanism under section 28 allows a court to unwind a third party payment if the person named applies within 28 days, providing a form of relief against mistaken or premature enforcement.

The Sheriff Act 2009 does not operate in isolation; it is explicitly part of a broader legislative scheme. Section 3 defines “court and enforcement legislation” to include not only this Act but also the Supreme Court Act 1986, the County Court Act 1958, the Magistrates’ Court Act 1989, the Infringements Act 2006, the Fines Reform Act 2014, the Crimes Act 1958, the Sentencing Act 1991, any other prescribed Act, regulations under those Acts, and rules of court. This definition means that the sheriff’s functions and powers under the Sheriff Act are exercised in conjunction with those other enactments. For example, the powers to enter and search premises under sections 17-20 are stated to be exercised “in accordance with the relevant court and enforcement legislation”, meaning the procedural requirements of those other Acts must also be satisfied. The Act frequently cross-references the Fines Reform Act 2014, particularly in relation to enforcement warrants, notices of final demand, and powers under sections 127-131, 140, 141, and 145 of that Act (see ss 16, 31, 47). Section 41 expressly provides that Part 4 Division 2 (application of proceeds) does not affect the operation of Part 9 or Part 11 of the Fines Reform Act 2014. The Act also interacts with the Sentencing Act 1991 through the definition of seven day demand (s 3, referencing s 69C), and through provisions dealing with warrants to arrest issued under s 69 of that Act (ss 27, 39). The Magistrates’ Court Act 1989 is another key interacting statute, as many civil and criminal warrants are issued under its provisions (e.g., ss 61, 68, 73, 111). The Act preserves the sheriff’s pre-existing common law and statutory powers from the Supreme Court Act 1986 to the extent they are not inconsistent (s 7(2)(a)). The savings and transitional provisions (ss 79-85) ensure continuity from the previous regime under the Supreme Court Act 1986. The Act also interacts with the Public Administration Act 2004 for employment and delegation purposes (ss 6, 8, 10, 11). The Privacy Act 1988 (Cth) is referenced in the definitions of credit information, credit reporting body, and identification information (s 52). The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents is given effect through section 55B, allowing the sheriff to serve foreign judicial documents from Convention countries. The Road Safety Act 1986 and Heavy Vehicle National Law (Victoria) are relevant to the sheriff’s powers at police road checks (s 30). The Local Government Act 2020 is referenced in the definition of Council (s 52). The Crimes Act 1958 and the Corrections Act 1986 are also referenced in definitions (s 3). The Act binds the Crown (s 5), meaning it applies to government entities. The interaction with these laws means that practitioners must consider the Sheriff Act in conjunction with the specific provisions of the relevant originating Act for each warrant type.

The Sheriff Act 2009 (No. 9 of 2009) received assent on 24 March 2009 and commenced on 1 October 2009. Since then, it has been amended by numerous Acts. The Table of Amendments in the version up to 3 May 2023 lists the following amending Acts: the Justice Legislation Miscellaneous Amendments Act 2009 (No. 87/2009) made various amendments to sections 13, 22, 27, 32, 35, 38, 39, 40, 47, 48, 49, 50, and 51, effective 16 December 2009. The Sentencing Amendment (Community Correction Reform) Act 2011 (No. 65/2011) amended definitions in Part 4, effective 16 January 2012. The Heavy Vehicle National Law Application Act 2013 (No. 30/2013) amended the road check provision, effective 10 February 2014. The Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 (No. 32/2013) amended definitions and sections 27, 34, 39, and 40, effective 19 April 2014. The Statute Law Revision Act 2013 (No. 70/2013) repealed spent Divisions 1-4 of Part 6, effective 1 December 2013. The Victoria Police Amendment (Consequential and Other Matters) Act 2014 (No. 37/2014) updated references from “police officer” definition, effective 1 July 2014. The most substantial amendments came from the Fines Reform Act 2014 (No. 47/2014), which inserted or amended many provisions including the definition of enforcement warrant, notice of final demand, and seven day demand; inserted section 22A (entry to multiple money warrants); amended sections 22, 26, 27, 28, 32, 33, 38, 39, 40, 41, 52, 53, and 55; and inserted sections 55A and 56(1A). These amendments commenced on 31 December 2017. The Fines Reform Amendment Act 2017 (No. 59/2017) substituted sections 16, 31, and 47, effective 6 December 2017. The Local Government Act 2020 (No. 9/2020) updated the definition of Council, effective 6 April 2020. The Police and Emergency Legislation Amendment Act 2020 (No. 29/2020) amended the definition of court and enforcement legislation in two stages: section 16 on 3 May 2021 and section 17 on 3 May 2023. Finally, the Justice Legislation Amendment (Fines Reform and Other Matters) Act 2022 (No. 17/2022) amended definitions of civil warrant, inserted definitions for Convention country, foreign judicial document, Hague Convention, interstate or Commonwealth judicial document; amended sections 13, 14, 16, 31, 47; inserted section 33A (handling unsold property) and Division 2A (service of judicial documents) with section 55B; and amended section 56. These amendments took effect on 19 May 2022. The amendments reflect ongoing policy developments in fines reform, information sharing, and international judicial cooperation.

The text of the Sheriff Act 2009 as provided does not include any references to specific court cases or litigation history. The Act itself contains no annotations or citations of judicial decisions. The endnotes include a Table of Amendments but no litigation history. Therefore, based solely on the source, we cannot identify any cases that have interpreted or applied the Act. It is possible that courts have considered various provisions of the Act, particularly the scope of enforcement powers, the use of force, the validity of warrants executed electronically, the application of priority rules, or the offences of resisting arrest, but no such cases are mentioned in the legislative material provided. The Act’s notes do not refer to any case law. As per the user’s instructions, we must not invent cases or statistics. Practitioners should conduct their own case law research to understand how Victorian courts have interpreted specific sections, especially those involving the use of force (s 21), the reasonableness of directions (s 31), the duties of the sheriff, and the defences available to persons charged with offences under Part 5. The absence of litigation references in the Act does not mean the Act has not been litigated; it simply means that the source text does not contain that information.

Several provisions in the Act contain less obvious details that could trip up practitioners or persons subject to enforcement. First, section 14 allows the sheriff to execute a warrant that is not in paper form, provided the sheriff verifies it electronically, gives the person specified warrant details, ensures any seven day demand period has expired (or been waived), and gives a copy of the warrant powers summary at the time of execution. This means a person may be confronted with enforcement based on an electronic record, not a physical document. Second, section 22(5) restricts the use of force to enter residential premises to execute civil warrants to between 7 a.m. and 9.30 p.m. However, section 22A creates an exception: if the sheriff has a money warrant that is a criminal warrant to execute against a person, the sheriff may also execute any other money warrant that is a civil warrant, even if entry occurs outside those hours. This means that a civil warrant can be executed at night if coupled with a criminal money warrant. Third, section 27(8) prohibits the sheriff from giving a third party any information about a money warrant beyond the payable amount. The sheriff cannot disclose details of the underlying debt or the person’s circumstances. Fourth, section 27(9) requires the sheriff to serve a notice on the person named in the warrant if a third party pays, but the person only has 28 days to apply for reinstatement. If the person is in custody or otherwise unaware, they may miss the deadline. Fifth, section 28(5) provides that a money warrant may only be reinstated once. This means a person who has a third party payment unwound cannot benefit from a second reinstatement if another third party pays later. Sixth, section 33(3A) prevents the sheriff from applying a third party payment to the debt until 28 days after receipt, giving the person time to apply for reinstatement. However, the sheriff could still seize property in the interim, which is not prohibited. Seventh, section 33A imposes a duty on the sheriff to give notice to the owner of unsold property and allows disposal after 3 months. The sheriff may dispose of the property in any manner considered appropriate, which could include destruction or sale at a nominal price. Eighth, section 32(4) prohibits the sheriff from recovering costs and expenses from a third party payment until 28 days after payment, but the sheriff can still seize property and incur costs during that period. Ninth, section 13(1A) provides that the duty to return a warrant under subsection (1) does not apply to return of a warrant under the Magistrates’ Court Act 1989 , this is an exception that could cause confusion about return obligations. Tenth, section 9(1) says the sheriff may delegate functions and powers “other than this power of delegation” , the power to delegate cannot itself be delegated. Eleventh, section 29(9) provides that it is not an offence for a person to fail to comply with a request for name and address if the sheriff did not inform the person at the time that refusal is an offence. This is a procedural safeguard that must be followed. Twelfth, under section 22(2), the sheriff must believe on reasonable grounds that there is or may be personal property of the person named that is recoverable property before entering premises for a civil warrant (other than warrant of possession). If that belief is absent, entry may be unlawful. Thirteenth, section 16(2) requires that a person restrained under the power to temporarily restrain must be released as soon as the activity being hindered is completed , there is no power to hold the person for any longer period. Fourteenth, the sheriff’s powers to seize property under section 23 are subject to the warrant and relevant court and enforcement legislation , not all property is seizable; only recoverable property as specified. Fifteenth, the Act does not provide for any right of the person named in a warrant to challenge the sheriff’s actions except through the reinstatement mechanism (for third party payments) or by seeking court orders. There is no express provision for compensation beyond the liability under s 33(4) for failure to give receipt or obtain discharge.

Compliance with the Sheriff Act 2009 requires different actions depending on the role of the person or entity affected. For the sheriff and delegated officers, compliance means adhering strictly to the procedural requirements for each warrant. Before entering premises to execute a civil warrant (other than warrant of possession), the sheriff must form a reasonable belief that recoverable property is present (s 22(2)). The sheriff must request consent from the owner or occupier (s 22(3)). Force may only be used if consent is unreasonably withheld, the person cannot be contacted after reasonable attempts, or the sheriff reasonably believes the person is avoiding contact (s 22(4)-(4A)). If using force to enter residential premises for civil warrants, the sheriff must do so only between 7 a.m. and 9.30 p.m. (s 22(5)), unless the exception under s 22A applies. When executing an electronic warrant, the sheriff must verify receipt electronically, provide specified warrant details, ensure any seven day demand period has expired or been waived, and give a warrant powers summary (s 14). Upon seizing property or receiving money, the sheriff must give a receipt without delay and take steps to obtain discharge of the debt (s 33). If a third party pays, the sheriff must not apply the payment for 28 days, must serve notice on the person named, and must not recover costs from that payment during that period (ss 27(9), 32(4), 33(3A)). The sheriff must apply proceeds from multiple warrants in the strict priority order under Part 4 Division 2. Unsold property must be the subject of a written notice to the owner, and disposal may only occur after 3 months if not retrieved (s 33A). The sheriff must execute all warrants against the same person at the same time where possible (s 35). For specified warrants, the sheriff must execute certain types first (e.g., property seizure warrant before warrant to imprison, s 37; warrant to imprison before enforcement warrant, s 38). The sheriff must ensure the return of warrants as soon as practicable, subject to the exception in s 13(1A). For persons subject to enforcement, compliance involves cooperating with lawful requests. If asked for name and address, the person should provide correct details; if they suspect the sheriff has no reasonable grounds or has not informed them of the offence, they may have a defence (s 29(9)). If a third party pays on their behalf, they should apply for reinstatement within 28 days if they wish to challenge the payment (s 28). Persons should keep documents relating to any payments made. For specified agencies, compliance requires responding to written requests from the sheriff for required information within 14 days, unless the agency is a law enforcement agency (which may comply but is not compelled) or the head certifies in writing that exceptional circumstances apply (s 54). The certificate must be given to the sheriff within 14 days. Agencies should have procedures to identify the person and provide name, date of birth, and last known address accurately and securely. For credit reporting bodies, compliance involves disclosing relevant information (identification information included in credit information) on the sheriff’s written request for the purpose of executing a warrant (s 55A). The disclosure is authorised, not mandatory. For courts issuing warrants, they should ensure warrants are properly directed to the sheriff and comply with the relevant court and enforcement legislation. Persons seeking to serve foreign, interstate, or Commonwealth judicial documents should request the sheriff to serve them; service of foreign documents requires a request from the Supreme Court (s 55B(1)), while interstate or Commonwealth documents may be served on request of a party (s 55B(2)). The regulations may prescribe fees for such services.